January 4, 2012
(The Sentencing Project)
Race and Justice News
Featured: Race and reform strategies
Spotlight on Research: Studies of racial disparities in federal sentencing
Spotlight on Research: Perceptions of problems affecting African American Communities and children
Policy: Governor vetoes bill that sought to end North Carolina’s Racial Justice Act
Policy: Justice Department investigates targeting of black students for unfair treatment in Mississippi
Policing: What are encounters with the police like for an African American male?
Race and reform strategies
An essay by David Cole in The Ohio State Journal of Criminal Law discusses the role of economic and racial injustice arguments in criminal justice reform efforts. He notes that economic arguments are appealing and may be politically expedient in light of budget problems states are currently facing. Cole reminds readers, however, that criminal justice policy is not always rational, citing research by Unnever and Cullen showing that a key reason for current punitive criminal justice policies is that “those who are disproportionately subject to harsh sanctions are people they do not like: African Americans.” He contends that reform efforts that fail to take on the racial injustice within the criminal justice system are incomplete and argues that lasting reform requires a combination of both economic arguments that appeal to taxpayers’ self interests and America’s commitment to equality. Cole notes that racial injustice has been the cornerstone of several successful reform campaigns, including those leading to a reduction in the 100:1 quantity disparity in sentencing for powder to crack cocaine, changes in New York’s harsh Rockefeller drug laws, and efforts to end racial profiling.
Studies of racial disparities in federal sentencing
In the 1980s, the United States Sentencing Commission (USSC) established federal sentencing guidelines limiting judicial discretion in sentencing, with the intent of curtailing bias on the part of judges. Departures from these guidelines were subject to appellate review. Subsequent Supreme Court decisions (Booker v United States, Rita v United States, and Gall v United States) changed the guidelines from mandatory to advisory and relaxed the review standards.
Jeffery Ulmer and colleagues report findings from a study that examined changes in racial disparities in sentencing post-Booker in an article recently published in Criminology and Public Policy. The study comes in the wake of a study by the USSC which reported marked increases in racial disparities in sentence length post-Booker relative to the period immediately preceding the decision. More nuanced analyses by Ulmer et al show that the USSC results, particularly with respect to African American males, are largely attributable to disparities in decisions about the level of punishment (prison versus probation). At the same time, Ulmer et al also find that a substantial proportion of variation in the length of sentences African American males received was explained by their prior criminal histories. This suggests that African American males with prior histories may receive longer sentences independent of the adjustments for prior criminal histories built into presumptive sentencing. Finally, Ulmer and his colleagues find that the magnitude of race-gender disparities differs when immigration crimes are examined separately from other crimes, suggesting that disparities in sentencing may be best understood by examining different categories of offenses.
In a related essay, Raymond Paternoster notes that “many practitioners and scholars did not like the mandatory federal sentencing standards because the standards were too harsh and retributive, and they may fear that empirical findings of greater disparity [post-Booker] such as those reported by the USSC may hasten their return.” Paternoster points to two issues that ultimately “must be argued on their own merits”: fairness in sentencing (the absence of racial and gender bias) and just treatment (sentences which are not viewed as overly harsh and retributive).
Perceptions of problems affecting African American Communities and children
In 1994, Hart Research asked African Americans about problems that were having a profound effect on African American communities and children. The leading problems at that time were poorly performing schools, drugs, guns, and lack of family unity. In a recent reprise of the study 15 years later, the perceived seriousness of those problems was surpassed by the problem of unequal treatment of African Americans within the criminal justice system. According to the study published by the Children’s Defense Fund, “whether referring to racial profiling by law enforcement, unfair sentencing guidelines for crack versus powder cocaine, or the prison industrial complex that disproportionately incarcerated Black Americans, this fact of life spans urban small town, and rural communities, as well as the socioeconomic spectrum within Black America.”
Governor vetoes bill that sought to end North Carolina’s Racial Justice Act
In 2009, North Carolina Governor Beverly Perdue signed the Racial Justice Act into law. The Act allows people on Death Row to challenge their sentences on the grounds of recurring racial bias. According to CBS News, North Carolina legislators recently attempted to strip the Racial Justice Act of its power by passing a bill entitled No Discriminatory Purpose in the Death Penalty, but Gov. Perdue vetoed the bill.
The News and Observer reports that Richard Shaffer, a North Carolina district attorney, subsequently resigned from Gov. Perdue's Crime Commission in reaction to her veto. The North Carolina General Assembly will decide in January whether it will override the Governor’s veto.
Justice Department investigates targeting of black students for unfair treatment in Mississippi
The Justice Department’s Civil Rights Division is investigating whether city and county authorities have a “pattern or practice” of violating the constitutional rights of students in Meridian, Mississippi. According to The Wall Street Journal, the investigation stems from allegations of “a ‘very tight relationship’ between the schools and the juvenile court that works to put black students under law enforcement supervision.”
What are encounters with the police like for an African American male?
In an article published in the Opinion section of The New York Times, Nicholas K. Peart, a student at Borough of Manhattan Community College, provides a firsthand account of what it was like for him to be the target of racial profiling as a black teenager. He describes multiple experiences of being stopped, frisked, searched, and on occasion held at gun point, by New York City police officers and how it shaped his views of police. He is currently a witness in a lawsuit brought by the Center for Constitutional Rights to stop racial profiling in New York.